Employers Won’t Do Jail Time for Snooping Around on Employees’ Cell Phones, But They May End Up Paying for It

Do you ever have that feeling that the cell phone conspicuously pointed in your direction is actually taking your picture? Or, do you worry that a gossipy employee is spreading nasty rumors about you via text messages? Do you ever just feel like snooping around on your employees’ cell phones to see what they are really up to? If so, you are not alone, and according to the Fifth Circuit Court of Appeals, you will not be going to jail for it. In Garcia v. City of Laredo the court determined that the Stored Communications Act (SCA) does not apply to pictures, videos, and text messages stored on an individual’s cell phone. In Garcia, a city police dispatcher’s cell phone was removed from her unlocked locker by a police officer’s wife (the court leaves to the reader’s colorful imagination the motive behind the commandeering of the phone). The officer’s wife, having examined the text and photographic contents of the phone, believed she had discovered violations by the dispatcher of the department’s policies, which she proceeded to share with the police chief and city manager. Apparently, the photos and videos stored on the phone were just too intriguing not to download to a city computer, so downloaded they were. Lo and behold, the contents (the specific nature of which is, once again, left for our own mind’s eye) revealed violations of the police department’s rules and regulations, and the dispatcher was subsequently terminated. The dispatcher brought suit against the department under the SCA, various privacy statutes, and for a violation of the Fourth Amendment. Only the SCA claim was on appeal.

Congress enacted the SCA to protect potential intrusions of individual privacy that the Fourth Amendment did not otherwise cover. It prohibits the unauthorized access to a facility through which wire and electronic communications are kept in temporary storage, or as back-up storage. According to the court, a cell phone does not act as a facility; rather, mobile devices, such as cell phones, computers, and iPads, merely enable the use of an electronic communication service, and are not facilities operated by electronic communication service providers. Thus, personal computing devices, where the user is the end-point of the communication service, fall outside the applicable language of the SCA.

This is good news for employers who end up in possession of information stored on employees’ personal cell phones. However, a word of caution before gathering up all your employees’ cell phones, iPads, and personal laptops — there is a potential liability landmine if you start actively confiscating such personal devices. The Garcia court explicitly stated that its opinion only applied to the SCA, and that it had no bearing on other privacy laws implicated by an employer’s actions. In fact, in Garcia, the employer only obtained the information leading to the employee’s termination because a third party — a police officer’s non-employee wife — provided the contents of the cell phone to the employer.

The moral of this story? If employers inadvertently acquire electronic communications from employees’ cell phones, there are no criminal penalties under the SCA. However, as tempting as it may be, employers should not actively snoop through an employee’s personal devices, as it will likely result in civil damages for violations of various privacy laws, including various state common laws or statutes.